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How Voter Suppression Laws Target Native Americans

Since the federal government formally gave Native Americans the right to vote in 1924 they have had to fight to use it.

Published: May 23, 2022

Native Amer­ican voters living on rural reser­va­tions often use ballot collec­tion services due to limited access to home mail services and polling places. Yet last year, Montana — home to 12 tribal nations — enacted a law that makes it illegal to pay organ­izers who collect completed absentee ballots from voters. 

The law is part of a nation­wide surge in voter suppres­sion legis­la­tion instig­ated by state legis­lat­ors embra­cing former pres­id­ent Donald Trump’s Big Lie of a “stolen” elec­tion. In 2021, states around the coun­try enacted dozens of restrict­ive voting laws, making vote by mail and early voting more diffi­cult, impos­ing harsher voter ID require­ments, and making faulty voter purges more likely.

These laws often dispro­por­tion­ately impact voters of color, poor voters, and young voters. As detailed in a recent White House report, Native Amer­ic­ans are often faced with a unique set of limit­a­tions that further obstructs their access to the ballot. Many reser­va­tions don’t have tradi­tional street addresses recog­nized by the USPS. And ballot drop boxes, polling places, and elec­tion offices are some­times located hundreds of miles away from reser­va­tions.

With the wave of restrict­ive voting legis­la­tion we saw in 2021 and continue to see this year, Native Amer­ic­ans across the coun­try are facing threats of disen­fran­chise­ment.

What is the history of Native Amer­ican voting rights?

When the Consti­tu­tion was rati­fied in 1788, Native Amer­ic­ans living in the United States weren’t considered citizens. When the 14th Amend­ment form­ally gran­ted Black Amer­ic­ans citizen­ship in 1868, it was inter­preted to exclude Native Amer­ic­ans.

In 1924, Congress passed the Indian Citizen­ship Act, finally grant­ing Native Amer­ic­ans all the legal rights of a U.S. citizen. However, despite their offi­cial status as citizens, Native Amer­ic­ans didn’t secure the right to vote nation­wide for nearly four more decades. Although federal law form­ally recog­nized their citizen­ship, the Consti­tu­tion gives the states primary respons­ib­il­ity to decide who is qual­i­fied to vote in state and federal elec­tions, and some states contin­ued to disen­fran­chise Native Amer­ic­ans for years after­ward.

To justify disen­fran­chise­ment, some states argued that Native Amer­ic­ans living on reser­va­tions weren’t qual­i­fied to vote because they didn’t pay state taxes or because they were wards of the federal govern­ment. For example, for decades Arizona courts inter­preted the state’s consti­tu­tion to deny the right to vote to Native Amer­ic­ans as “persons under guard­i­an­ship.” 

It wasn’t until a land­mark decision in 1948 that the Arizona Supreme Court recog­nized the legal right of Native Amer­ic­ans to vote. The same year, a federal three-judge panel in a New Mexico case held that a provi­sion of New Mexico’s consti­tu­tion deny­ing the fran­chise to “Indi­ans not taxed” viol­ated the 14th and 15th Amend­ments. Finally, in 1957, Utah became the last state to remove its laws deny­ing Native Amer­ic­ans the right to vote.

However, even after Native Amer­ic­ans secured the right to vote across the coun­try, states contin­ued to suppress their votes and those of other minor­ity voters through discrim­in­at­ory prac­tices like liter­acy tests.

The Voting Rights Act of 1965 finally provided a frame­work through which voters’ rights would be enforced. Section 5 of that law required states with a history of discrim­in­at­ory voting policies to get federal approval for any changes to their voting rules before imple­ment­ing them in future elec­tions to ensure that the changes would­n’t have a racially discrim­in­at­ory effect on voters. Section 2 also provided voters a mech­an­ism for chal­len­ging discrim­in­at­ory prac­tices in court in juris­dic­tions that were not subject to this “preclear­ance” rule. 

For nearly 50 years, Section 5 preclear­ance helped ensure that states did not deny the right to vote on account of race, color, or member­ship in a minor­ity language group. However, in 2013, the Supreme Court effect­ively gutted preclear­ance in Shelby County v. Holder. The disastrous effects of this decision were imme­di­ate. Many of the states that were previ­ously covered — and the Native Amer­ican communit­ies within them — saw new restrict­ive voting policies enacted in the years that followed. 

Then in 2021, the Supreme Court did further damage to the Voting Rights Act in a case called Brnovich v. Demo­cratic National Commit­tee. In that case, which concerned Arizona policies that dispro­por­tion­ately burdened the rights of Native Amer­ican voters — includ­ing a limit­a­tion on ballot collec­tion — the Court made it harder to chal­lenge such discrim­in­at­ory policies under Section 2.

How do voter suppres­sion laws target Native Amer­ic­ans?

Laws that make voting harder often have a dispro­por­tion­ate impact on Native Amer­ican voters, frequently by design. Many Native Amer­ican communit­ies find voting diffi­cult and inac­cess­ible, often due to inad­equate invest­ment into voting resources and infra­struc­ture on reser­va­tions. And some laws take direct aim at services Native Amer­ican voters rely heav­ily on to over­come exist­ing barri­ers.

Drop boxes and elec­tion offices can be located miles away from reser­va­tions, making voting partic­u­larly burden­some for those communit­ies. The Black­feet reser­va­tion in Montana, for example, is almost the size of Delaware and has some 17,300 enrolled members. And yet, in 2020, it had only four ballot drop-off loca­tions until a success­ful lawsuit brought under Section 2 of the Voting Rights Act provided for an addi­tional satel­lite office on the reser­va­tion.

Some reser­va­tions don’t have any polling places or drop boxes at all, forcing voters to take time off of work and drive miles out of their way to cast their ballots — some­thing many can’t afford to do. Indi­vidu­als on the Duck­wa­ter reser­va­tion in Nevada, for instance, have to travel 140 miles each way to reach the closest elec­tions office in Tono­pah.

The loca­tions of polling places have a signi­fic­ant impact on one’s abil­ity to parti­cip­ate in elec­tions. A 2017 survey of Native Amer­ic­ans repor­ted that 32 percent of respond­ents in South Dakota said that the distance needed to travel to the polls affected their decision to cast a ballot. 

While Native Amer­ican voters have tried to navig­ate these obstacles, some voting policies have provided crucial support for those determ­ined to cast their ballot. For those trav­el­ing long distances, same-day voter regis­tra­tion has been a boon, espe­cially for voters who don’t have access to the inter­net and can’t register online. Paid ballot collec­tion can make cast­ing ballots easier for voters who don’t have easy access to drop boxes by allow­ing a third party to collect and deliver ballots on behalf of other voters. Laws like Montana’s H.B. 176 — which targets Elec­tion Day regis­tra­tion — and H.B. 530 — which goes after ballot collec­tion —threaten to elim­in­ate these options for voters.

Some states are also passing stricter voter ID laws, which can often impact Native Amer­ic­ans more than others. Many voters living on reser­va­tions don’t have tradi­tional street addresses and instead rely on P.O. boxes for mail services. Thus, strict voter ID laws that require address-display­ing forms of iden­ti­fic­a­tion to vote dispro­por­tion­ately burden tribal communit­ies that are less likely to possess qual­i­fy­ing ID. In 2018, 19 percent of Native Amer­ican eligible voters in North Dakota did not have a qual­i­fy­ing ID to cast a ballot under the state’s strict ID law, in compar­ison to 12 percent of other voters across the state.

How can Native Amer­ican voting rights be protec­ted now? 

One route for protect­ing voting rights is the courts. Right now, the Native Amer­ican Rights Fund and the ACLU are chal­len­ging the consti­tu­tion­al­ity of Montana’s H.B. 176 and H.B. 530. In April 2022, a state judge blocked enforce­ment of the two laws while the case proceeds. 

But litig­a­tion can be costly and time-consum­ing. And as explained above, recent decisions by the U.S. Supreme Court have weakened federal protec­tions and limited the tools avail­able to fight discrim­in­at­ory meas­ures in court.

But Congress can help. The bipar­tisan Native Amer­ican Voting Rights Act was intro­duced in the House in August 2021 and was included as part of the Free­dom to Vote: John R. Lewis Act, which was defeated in the Senate in Janu­ary. Endorsed by many Native Amer­ican tribes and advocacy groups, the bill would allow tribes to determ­ine an assort­ment of items pertain­ing to voting, includ­ing the number and loca­tion of voter regis­tra­tion sites, polling places, and drop boxes on their reser­va­tions. It would also require states to accept tribal ID as voter iden­ti­fic­a­tion.

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The United States has a troubled history of discrim­in­at­ing against Native Amer­ic­ans, espe­cially with respect to the fran­chise. With states continu­ing to pass laws threat­en­ing to disen­fran­chise Native Amer­ic­ans across the coun­try, Congress must act now and pass the Native Amer­ican Voting Rights Act.